Terrorist Asset-Freezing etc. Bill [HL]

Lord Mackay of Clashfern Excerpts

Monday 25th October 2010 Lords Chamber

[Lord Judd]

I listened very carefully to what my noble friend said in his forthright argument. I have always thought that if anyone was the epitome of someone who lives in the real world, it is my noble friend. What is important about the amendment of the noble and learned Lord is that, with all his vast legal experience, he is reminding us of certain basic principles which we seek to defend in our antiterrorism legislation—the character of our society.

I am troubled in what I have seen as a drift over the years by what has happened to the principle of the presumption of innocence. I am not a lawyer, and it takes a certain amount of intellectual courage, if I may put it that way, to rise in a debate such as this when the lawyers are all speaking with so much authority and learning. However, as an ordinary citizen, the principle of the presumption of innocence is very precious, and we need to be certain that, in the terribly difficult task with which we are confronted in preventing terrorism, we do not throw the baby away with the bathwater. The noble and learned Lord’s amendment is not necessarily the best way to pursue the matter, but I seek some very convincing reassurances from the Minister when he comes to reply.

[Lord Mackay of Clashfern]

My Lords, I am prompted to rise by the noble Lord, Lord Judd. The principle to which he refers is displaced only by a conviction. Therefore, the amendment does not particularly invoke that principle. I would be interested to hear the basis on which the noble and learned Lord, Lord Lloyd, thinks that a person should be charged with an offence under this provision. Of course, I understand the point made from the opposition Front Bench. It may be sufficient if there are assets in the jurisdiction, even if the person who owns or controls the assets is not himself or herself in the jurisdiction. Having listened carefully to my noble and learned friend Lord Lloyd of Berwick, I am left with the question of the basis on which, or the extent to which, one must know what has happened in order to charge someone with an offence under these provisions.

[The Commercial Secretary to the Treasury (Lord Sassoon)]

My Lords, if noble Lords will permit me, I will speak to this entire group of amendments, although there has not been any significant discussion on some of them. It is perhaps worth summarising what these amendments would do. They would limit final designations to those charged with a terrorist offence of a description within Clause 2(2). They would require any final designation to cease if the charges are dropped or the person is acquitted and require the Treasury to apply to the court to make an interim designation.

Amendments 1 and 3 relate to the Treasury’s power to make a final designation. They require the Treasury to make final designations against only those people who have been charged with a criminal offence falling within the description of terrorist activity in Clause 2(2) for the purposes of the Bill.

Amendments 4, 5 and 6 require a final designation automatically to expire when a person charged is acquitted or charges are dropped before the ordinary one-year expiry. This goes to the heart of what this regime is intended to be about. Although I echo the words of the noble Lord, Lord Bach, in recognising the contribution of the noble and learned Lord, Lord Lloyd of Berwick, and the great wisdom he brings to this, I think he does not go to the complete heart of the rationale of UNSCR 1373, which is indeed preventive. It requires states to take steps to prevent terrorist acts. I should quote further from the resolution. Its paragraph 1(c) states that one of the means of achieving this requires states to:

“Freeze without delay funds and other financial assets or economic resources of persons who commit, or attempt to commit, terrorist acts or participate in or facilitate the commission of terrorist acts”.

The rationale of paragraph 1(c) is to prevent funds, financial assets and other economic resources being used or diverted for terrorist purposes, and the Government absolutely believe that it would not accord with the preventive rationale of the UN resolution if a final designation could be made only in respect of those charged or convicted of terrorism-related offences.

If that were the threshold, the Treasury would not be able to freeze the assets of those in respect of whom there was evidence that was insufficient to bring such a charge, but sufficient to give rise to a reasonable belief on the Treasury’s part that the person represented a terrorist risk—for example, where an interim designation has been made in respect of a person on the basis of a reasonable suspicion and insufficient evidence has come to light during the 30-day period of that interim freeze that would allow charges to be brought, but the Treasury has nevertheless come to a reasonable belief that the person is or has been involved in terrorism and considers it necessary for public protection that the final designation be made. If the Treasury were not able to make a final designation in those circumstances, that would give rise to a risk of terrorism that the requirements of the UN resolution are meant to prevent.

I remind the House that in making these designations, it is necessary that the dual test is met. The other half of the test, which has not been mentioned this afternoon, is a public protection leg. It is the Government’s continued firm belief that a reasonable belief threshold for a final designation would allow the Government to implement effectively the requirements of the resolution.

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[Lord Lloyd of Berwick]

Did he not say that? He said that he differentiated this measure from control orders on the ground that we are not concerned here with human rights, but we are, albeit a different provision under the Human Rights Act—Article 1 of Protocol 1, which is that a person’s property cannot be interfered with. We are in exactly the same area as control orders, which is why the judges in the Supreme Court have described asset freezing of this kind by Treasury order as being almost as restrictive as control orders themselves. The noble Lord has not dealt with any of those points. I think that the noble and learned Lord would like to intervene.

[Lord Mackay of Clashfern]

My Lords, I would like to be sure that I understand. The noble and learned Lord’s Amendments 9 and 11 seem to allow the Treasury to make an application for leave to make an order. They do not provide for the Treasury making, nor suggest that the Treasury makes, the order in the end.

[Lord Lloyd of Berwick]

My Lords, I entirely agree with the noble and learned Lord. That is the normal way in which it is done—let the Treasury make the order, but only with the leave of the judge. I see no reason why that should not flow. It is an even clearer case than that of Mareva injunctions, where it was the judge who made the order. Either way, that is the way in which we should be dealing with this. I am sorry to say that I fear that it is pointless for me to take this any further, so I reluctantly beg leave to withdraw the amendment.

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[Lord Lester of Herne Hill]

I spent much time on Bills seeking to persuade the previous Administration that the statute book should state the law as clearly as possible. I remember most recently, on the Equality Bill, that I managed to persuade the previous Government—with the help, as I recall, of my noble and learned friend Lord Wallace of Tankerness—that statutes ought to say what the law is. The summary of the position by the noble Lord, Lord Pannick, is absolutely accurate. There are problems in administrative law over the circumstances in which compensation or damages are payable. The Bill, at present, does not explain those.

Presumably the Minister will remind the House that we are dealing with Article 1 of Protocol 1; we are dealing with circumstances in which property has been taken away from somebody. In an appeal, I suppose it would be said that that was an interference that should give rise to compensation. In other words, the European convention and, I suppose, the Human Rights Act—which require this legislation to be read, if possible, compatibly with the convention rights—would give rise to a right to compensation or damages in appropriate circumstances. However, it is not satisfactory to leave this to a Pepper v Hart statement by the Minister, rather than to have some appropriate language—whether that of the amendment of the noble Lord, Lord Pannick, or something else—so that the individual does not have to go to lawyers to discover what the situation is, but can tell from the statute itself what the law is.

Even if the amendment of the noble Lord, Lord Pannick, is not accepted by the Government, I hope that by Third Reading some appropriate language will be inserted so that the Bill will state the law as it is intended to be, rather than relying on Pepper v Hart. In that case I had the good fortune to appear on behalf of the successful party, with the noble and learned Lord, Lord Mackay, dissenting. I sometimes wonder, with respect, whether he was right in his dissent. The case gave rise to the possibility that Hansard will always be used to make good what the statute does not properly state itself. Although I hope I was right and the House was correct in the outcome of Pepper v Hart, it could set a bad example to Ministers if they did not amend Bills to state the law correctly.

[Lord Mackay of Clashfern]

Noble Lords can hardly expect me to remain silent while that remark is made. I support the amendment moved by the noble Lord, Lord Pannick. So far as I can judge, it seems to be appropriate in its wording. If the Government were willing to accept the principle, they might wish to consider the precise words. There is also the question of whether the same principle should not apply in relation to Clause 27, where a judicial review provision is in question. The remarks of the noble Lord, Lord Pannick, apply as much to judicial review as to any other form of order in administrative law. Therefore, it is worth considering—if the Government decide to accept this amendment or something like it—whether something of the same kind should go into Clause 27 as well. It is obvious that if the Government think this is something that should happen, it is unwise to leave it on Pepper v Hart. However good the noble Lord, Lord Pannick, thinks that decision is, it would be rather better to put it in express provision, which in any event saves a certain amount of litigation.

[Lord Bach]

Briefly, I can say only to the noble and learned Minister: plus ça change. Here I am, supporting in what I am about to say the suggestion made by the noble Lord, Lord Pannick, in his amendment. I do so in rough terms; I am not in any way inviting him to test the opinion of the House on it today. This is surely a matter that can be dealt with in some more satisfactory way than that. The noble Lord seems to have a point, backed up as he is by the noble Lord, Lord Lester, and the noble and learned Lord, Lord Mackay of Clashfern. I ask the Minister this simple question. Presumably he will argue that,

“such order as it considers appropriate”,

includes damages. If the answer to that question is yes, can there be any reason not to put that in the Bill in express terms, for the reasons stated by the noble Lord, Lord Pannick?

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[Lord Mackay of Clashfern]

My Lords, it appears reasonably plain that the ratio of the decision of this House in the case referred to by the noble Lord, Lord Pannick, would apply with equal effect to asset-freezing orders and to the subject matter of that particular decision. The only question is whether one has to wait for a court to make that decision in this type of case or whether Parliament should decide it now. To achieve a good and clear result fairly quickly, the proposal of the noble Lord, Lord Pannick, is correct. The precise wording follows very much that of the decision of this House in AF (No. 3), but I can see that there is room for consideration of that. However, I strongly support the view that this principle should be recognised in relation to asset freezing, as it was in AF (No. 3).

[Lord Carlile of Berriew]

My Lords, I join in asking my noble friend to consider very carefully the proposal put forward by the noble Lord, Lord Pannick. I agree entirely with the noble and learned Lord, Lord Mackay of Clashfern, that there is no logic to saying that different principles will apply to asset-freezing cases from those that apply to control order cases.